Bombay High Court
Vardhamankunj Premises Co-Operative ... vs Municipal Corporation Of Greater ... on 3 December, 1998
Equivalent citations: 1999 A I H C 2447, (1999) 1 MAH LJ 448, (1999) 1 MAHLR 515, (1999) 1 ALLMR 9 (BOM), 1999 BOM LR 1 796, (1999) 1 BOM CR 636
Author: S.S. Parkar
Bench: S.S. Parkar
ORDER Ashok Agarwal, J.
1. A short question that arises for consideration in the present petition is, whether the property owned by the petitioner cooperative society, is liable to repair cess or is exempt therefrom. Petitioners are a co-operative society which was formed after the erstwhile tenants of the building had purchased the same from its erstwhile owners. The said society was formed and registered on 28th February, 1979. Prior to the registration of the society, the said building was liable for payment of repair cess as the property then vested in the erstwhile owners. After the building was purchased by the tenants and after the tenants formed themselves into a society, they claimed exemption from payment of repair cess in view of the provisions of section 83(1)(g) of the Maharashtra Housing and Area Development Act, 1976 (hereinafter referred to as the 'MHADA Act'). The said plea did not find favour with the respondents and the respondent Nos. 1 and 2 issued a notice bearing No. D/3/87-88 (at Exhibit-F to the petition) claiming repair cess. The same is impugned in the present petition. As far as the registration of the petitioner society is concerned, the same, it appears, has been registered as a general society. Though this may be so, in our view, it squarely falls within the definition of "co-operative society" as defined in section 2(12) of MHADA Act. Section 2(12) provides, as under :--
"2. In this Act, unless the context requires otherwise, --
(12) "co-operative society" means a co-operative housing society registered or deemed to be registered under the Maharashtra Cooperative Societies Act, 1960."
Similarly, petitioner society falls within the definition of "Housing Society" as defined under section 2(16) of the Maharashtra Co-operative Societies Act. Section 2(16) of the said Act provides as under :
"2. Definitions. (16) "housing society" means a society, the object of which is to provide its members with open plots for housing, dwelling houses or flats; or if open plots, the dwelling houses or flats are already acquired, to provide its members common amenities and services;"
In our view, petitioner society would not fall within the definition of "general society" as defined under section 2(15) of the said Act, which provides as under :--
"(15) "general society" means a society not falling in any of the classes of societies defined by the other clauses of this section;"
2. Since petitioner society falls within the definition of 'housing society' it will not fall within the category of general society and this will be so despite the petitioner society being described as a 'general society' in the registration certificate issued in favour of the petitioner.
3. Section 83(1)(g) of the MHADA Act exempts lands and buildings vesting in, or leased to a Co-operative Housing Society. Since the building in question, vests in the petitioner Co-operative Housing Society, the said building, in our view, is exempt from repair cess.
4. Reliance, however, is placed on behalf of the respondents on a decision of a Single Judge of this Court in the case of The Beacon Co-operative Premises Society Ltd. and another v. The Municipal Corporation of Greater Bombay and others, in Writ Petition No. 864 of 1987 decided by S.H. Kapadia, J., on 16th of June, 1992. In our view, the facts of that case were entirely distinct from the ones arising in the present petition. In that case, it was the case of the society therein that it was a premises society and its building was not exempt from levy of repairs cess. Based on the contentions, repairs had been carried out to the building of the petitioners therein. When a stand contrary to the one mentioned above was taken by the petitioners therein, after having had the benefit of the repairs being carried out by the Repair Board, it was found that the said building was not entitled to exemption.
5. In the instant case, the consistent stand taken up by the petitioner, after the society was registered, is that the building, in question, is exempt from the date when the building vested in the society. The building, in question, has never been repaired by the Repair Board.
6. In the circumstances, we hold that the building of the petitioner society is entitled to exemption under section 83(1)(g) of the MHADA Act. Rule, in the circumstances, is made absolute in terms of prayer clauses (a) and (b). No orders as to costs.
"Prayer Clauses (a) & (b) :
"(a) That this Hon'ble Court be pleased to issue a Writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate writ, direction or order under Article 226 of the Constitution of India ordering and directing the respondents their officers, subordinates, servants and agents to withdraw and cancel the said Notice dated nil bearing No. D/3/87-88 being Exhibit 'F' hereto and to forbear and desist in any manner enforcing or implementing the same for levying 'Repair Cess' against the petitioners."
"(b) That this Hon'ble Court be further pleased to issue a Writ of certiorari or a Writ in the nature of certiorari or any other appropriate writ, order or direction under Article 226 of the Constitution of India, calling for the records and after going through the legality and propriety thereof to quash and set aside the said Notice dated nil Exhibit 'F' hereto."
7. Shri Nagda, the learned Advocate appearing on behalf of the petitioner, undertakes, on behalf of his clients, that the petitioner society will apply for registering the petitioner society as a "Co-operative Housing Society" within a period of four weeks from today.
8. Expedite the issue of certified copy.
9. Petition allowed.